Wilsons Appeal Dismissial of Plame Civil Lawsuit

Bump and Update: This just in by e-mail from Melanie Sloan, attorney for Joe and Valerie Wilson:

Today, on behalf of Joe and Valerie Wilson, Citizens for Responsibility and Ethics in Washington filed an appeal from yesterday’s district court’s decision dismissing their lawsuit. Having had the opportunity to review Judge Bates’ decision, the Wilsons and their legal team have concluded that there are ample grounds for appeal and have taken the steps necessary to seek review by a higher court. The Wilsons believe that this case presents important issues regarding the abuse of government power for political ends and will continue to aggressively pursue all legal remedies. Hopefully, this case will deter future government officials from endangering our national security to further a partisan agenda.

The Wilsons' lawyer, told the Washington Post they anticipate appealing the decision:

While Judge Bates recognized that the Wilsons’ claims “pose important questions relating to the propriety of actions undertaken by our highest government officials,” he dismissed their suit on a threshold legal issue: that there is no constitutional remedy available to them.

The opinion, by District of Columbia District Court Judge John D. Bates, is here.

Joseph Wilson has sent out this response (by e-mail.)

"This case is not just about what top government officials did to Valerie and me." Wilson continued, "We brought this suit because we strongly believe that politicizing intelligence ultimately serves only to undermine the security of our nation. Today's decision is just the first step in what we have always known would be a long legal battle and we are committed to seeing this case through."

There are five causes of action in the amended complaint. Four are constitutional claims alleging violations of the first and fifth amendments and one common law tort claim. If Wilson and Plame are going to get their civil damages, they have to prevail on the merits of at least one of the causes of action.

The constitutional claims are called Bivens claims after the first Supreme Court case in which a money damages remedy is provided under the Constitution alone for violations of constitutional rights.

Bivens suits have not been entertained lightly by the courts because they are a remedy fashioned solely by the courts and not legislatures. For that reason the Supreme Court has established limitations on their use. One of those limitations applies when "special factors counsel hesitation" before applying such an extra-legislative remedy.

Under the special factors analysis courts have been reluctant to allow a Bivens remedy if alternative remedial schemes exist. In its opinion, the court discusses two possible remedial schemes that apply to this case: the Privacy Act and the Intelligence Identies Protection Act. It found that Wilson and Plame could have made claims under the Privacy Act and that since Congress has established that remedial scheme for the constitutional claims at issue, the plaintiff's should have availed themselves of that remedy rather than attempting the Bivens claims.

On the other hand, the court ruled that the IIPA does not constitute an alternative remedial scheme in this case, despite the arguments of defendants, because it appears that Congress only intended the IIPA to create criminal penalties for disclosures of the kind alleged by plaintiffs. Since Congress didn't reach civil remedies with the IIPA, it doesn't constitute an alternative remedial scheme under the Bivens special factor analysis.

The court notes that even if the Privacy Act wasn't an alternative remedial scheme, other factors also consel against allowing the Bivens remedy including separation-of-powers and justiciability concerns.

The court sums this portion of the opinion:

In sum, the Court finds that the existence of special factors counsels against judicial
implication of plaintiffs' Bivens claims in this setting. Accordingly, there is no need to address
defendants' alternative arguments for dismissal of these claims, including their assertions of qualified immunity and the Vice President's claim of absolute immunity.

It is worth repeating that this is not a decision on the merits of Wilson and Plame's case.

The common law tort claim is for a cause of action called public disclosure of private facts. That would be fine if the defendants were private citizens, but the Federal Employees Liability Reform and Tort Compensation Act of 1988 provides the exclusive remedy for tort claims against Government employees acting within the scope of their duties.

There is interesting analysis of whether the defendants here were acting within the scope of their employment, but the short answer is: once the Attorney General certifies that they were acting within the scope of their activities (and he did long ago, for these defendants) the burden is on the plaintiff to show that they were not. Here, Wilson and Plame did not allege sufficient facts to show that they were acting outside the scope of their duties.

Therefore, their only remedy is to sue the U.S. under the Federal Tort Claims Act. As oculus notes, they failed to do that and that is kind of a major oopsie.

That's about it. Keep in mind that this is a District Court decision and did not reach the merits of the claim. From here, the case can go the DC Circuit for ruling on these matters. If that court decides that this judge got it wrong, it can be remanded for a ruling on the merits.

not suing under the FTCA is an oopsie. I'm not an expert on FTCA, but most states have similar acts and I'm familiar with their principles. The problems are an extensive list. Here are a few, in no particular order:

1. There are all sorts of defenses and immunities available to the defendants in the FTCA context - was this a discretionary or ministerial function, did it have to do with the enforcement of a particular law, yadda, yadda. Construction of the law in favor of immunity and against liability, yadda, yadda. Bad enough. But,

2. There are doctrines in FTCA litigation which implicate state law to determining which defenses apply and how, and other major issues in the case. For example, the very major issue of choice of tort law. In the aviation context, waggish AUSAs call the choice of law principle "lex loci crater", i.e., the conflict of laws principles dictate choosing the tort law of the place where the plane hit the ground. I have little doubt there's a similar principle in effect here (even though this is not an aviation context) - the law of the place of the wrong. Since, arguably, it took place in Virginia, where CIA HQ is and where Plame's career was trashed, a strong argument could be made that Virginia state tort law would likely control as to some important issues. The first one off the top of my head is the issue of "comparative fault", i.e. the set of rules governing whether and how much the plaintiff recovers. Virginia, along with Maryland and a couple other states, still adheres to the old common-law rule of contributory negligence. That rule states that if the plaintiff is even one percent negligent/at fault, the plaintiff takes nothing. The defense attorneys get to make the old "even if there's fault as insubstantial as a scrap of paper, you must find for the defense" argument. You've seen the Comstock Load of manure on "no underlying crime" accompanied by the other Load of manure saying "Plame outed herself". You see where that goes? Then,

3. Under the FTCA, as with most tort claims acts, filing the notice of claim requires you to file a detailed statement of how the incident took place, the nature of the injury and the nature of your damages. Probably under oath. The problem for Plame would be she would have to file this paper saying: "I was a spy for the CIA and lived under a confidential secret identity and because Deadeye Dick and his thugs didn't like my husband calling their bullsh*t, they outed me." So, to bring an FTCA claim, Plame would indeed have to out herself - probably violating not only her secrecy oath with CIA, her clearance and SF-312, but likely also violating the IIPA as to herself.

Yeah, it was a real oopsie not filing an FTCA claim. Riiiiiight.

This is a seriously difficult case with a huge uphill struggle for the plaintiffs. Always was a high-risk, low-probability of success endeavour. But, it was worth it.

And, FWIW, this is why plaintiff's attorneys work on a contingency. Almost no one could afford to hire an attorney to take this case on an hourly basis (notwithstanding that there's an obscure federal statute limiting the attorneys' fees in FTCA cases to a low percentage of recovery, on pain of a couple years incarceration) because the issues are so manifold, complex and detailed that only the guy who only gets paid if he wins is the guy to hire. Anyone on an hourly basis could easily make a career out of this case, get no result, and still make out.

I had been expecting FTCA claims and those require that an administrative claim be filed within 2 years to preserve the right to bring a civil action if the agency outcome is adverse. There appear to be no FTCA claims. (Although it is certainly conceivable the defendants might argue some or all claims are only cognizable under FTCA.) ...

I also noted back then that it was very questionable whether the claims asserted could survive 12 (b)(1)- subject matter jurisdiction or 12 (b)(6)-- failure to state a claim upon which relief may be granted and that it was not a good bet the case would ever reach the discovery stage let alone result in a judgment for the plaintiffs. As I also said then, this case was political in motivation but it was extremely unlikely it would have any "positive" political impact and near a dead certainty it would not be "won" by the plaintiffs. I think the Wilsons and their lawyers knew all along how very weak the case was in all respects and harbored no illusion there would ever be a "legal victory" but thought the very remote shot at making some political points was worth the effort.

a fight where I could only root against everyone involved on both sides. Wilson and Plame exemplify or personify many of the serious problems with our diplomatic and intelligence services but that in no way justifies the WH and OVP actions.

"we strongly believe that politicizing intelligence ultimately serves only to undermine the security of our nation."

I agree, that is why he should have never been sent. The whole column that Novak wrote was about why in the world would the CIA have sent a partisan hack like Wilson in the first place. The question everyone with a brain wanted to know. Here we had a Fox News contributor that was openly against the Administration's Iraq war policy being sent by the CIA to investigate Saddam's attempted yellow cake acquisition. Is it really a surprise that he used the auspices of the CIA and the Office of the Vice President to bolster his charges? Is it really surprising that the same partisan CIA officials that sent Wilson were also the same people that sent over the referral to the Justice Department? If we want the CIA to be transparent, all Americans should demand that hacks like Wilson do not get sent on tea sipping missions.

Joe Wilson must be a common name, and you have apparently confused the eminently qualified former ambassador with some partisan hack unrelated to him.

It would have been difficult to find anyone MORE qualified than Ambassador Wilson to make this investigation. He had served as an ambassador to the region, he knew many of the heads of state personally, and he spoke the language.

Furthermore, he had contributed to Mr. Bush's campaign, which suggests that if he is "partisan" it is on the GOP side.

Of course, after the despicable attack on his family and on our intelligence agencies, it is unlikely that he will ever contribute to another Republican.

Mr. Wilson's conclusions were accurate, and if results matter rather than name calling, what difference did it make to you who uncovered the truth? Whom did you have in mind that could have done a better job?

What he told the agency was accurate, what he wrote in his op-ed was fraudulent. I knew Joe Wilson long before you moonbats did. He was a Fox News contributor and a loud critic of the Bush Administration. If there were ever a reason why the CIA fails in it's duty to make informed intelligence decisions, this episode is a glaring abomination of the lack of transparency at the CIA.

This case will never see the light of day, it is simply harassment. You would salivate as defense council to get him on the stand. "Mr. Wilson, how can you claim damages for public ridicule when you had anonymously told your story, published twice in leading national newspapers, and then publicly signed your name to your story?" Not only did you bring focus upon yourself, but you can not claim that by doing so, you didn't also bring the possibility that your wife's existence could be revealed."

There's a lot more involved here than merely not filing an FTCA notice.

I've done any number of legal malpractice cases for both plaintiffs and defendants. I don't think there was any malpractice here. You should not throw that allegation around without thinking through all the angles of the case. At minimum, it's not a very nice thing to say.

Frankly, I think Plame's lawyers did probably about as good a job as could have been done with an extremely difficult case.